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To promote stable, constructive labor-management relations through the resolution and prevention of labor disputes in a manner that gives full effect to the collective-bargaining rights of employees, unions, and agencies.

This matter is before the Authority on exceptions to an
award of Arbitrator Barbara W. Doering. The Arbitrator
determined that the Agency did not violate the parties'
collective bargaining agreement by scheduling training for 8
1/2 hours to include an unpaid, 30-minute meal period in any
situation where the employees are not at least potentially in
an on-call status with respect to operational duties. However,
the Arbitrator ruled that, to the extent training may have been
scheduled for operationally qualified air traffic controllers
to include a 30-minute, unpaid meal period, the practice must
be changed to conduct such training within a regularly
scheduled 8-hour workday.

Both the Union(1)
and the Agency filed exceptions to the
Arbitrator's award under section 7122(a) of the Federal Service
Labor-Management Relations Statute (the Statute) and part 2425
of the Authority's Rules and Regulations.(2) The Union filed an
opposition to the Agency's exceptions. The Agency did not file
an opposition to the Union's exceptions.

We find that the portion of the Arbitrator's award
ordering that training of operationally qualified air traffic
controllers must be conducted within a regularly scheduled
8-hour workday is deficient, and we will modify the award
accordingly.

II. Background and Arbitrator's Award

Air traffic controllers, when involved in the operation of
air traffic control, work an 8-hour shift, which includes a
30-minute, paid meal period. However, when the Agency assigns
certain controllers, who are not exempt from the Fair Labor
Standards Act (FLSA), to training or nonoperational
administrative status, the Agency schedules a workday of 8 1/2
hours, which includes a 30-minute, unpaid meal period. The
Union filed a grievance claiming that the Agency had violated
Article 34, Section 1 of the parties' collective bargaining
agreement by "requir[ing]" employees "to work 8 1/2 hours while
assigned to administrative duties such as training."
Transcript of Arbitration Hearing, Joint Exhibit 3A. Article
34, Section 1 pertinently provides: "The basic workday shall
consist of eight (8) consecutive hours . . . ." The grievance
was not resolved and was submitted to arbitration. The parties
were unable to agree on a statement of the issue. The
Arbitrator stated the issue as follows:

Does the Agency violate the Contract by
scheduling a workday of 8.5 hours, as a result of
inclusion of a 30 minute unpaid lunch, for
members of the bargaining unit assigned to
administrative duties such as training? If so,
what is the appropriate remedy?

Award at 1.

Before the Arbitrator, the Union contended that
nothing in the collective bargaining agreement suggests
that there are exceptions to the 8-consecutive-hour
workday for different kinds of duty. The Union argued
that it was understood in the negotiation of the agreement
that air traffic controllers are a special category of
Federal employee because 5 U.S.C. § 5546a(e)(1) entitles
them to premium pay for missed meals and effectively
provides for paid meal periods. 5 U.S.C. § 5546a(e)(1)(3)
provides:

The Administrator or the Secretary may pay
premium pay to any air traffic controller or
flight service station specialist of the Federal
Aviation Administration or the Department of
Defense who, while working a regularly scheduled
eight-hour period of service, is required by his
supervisor to work during the fourth through
sixth hour of such period without a break of
thirty minutes for a meal.

The Union submitted to the Arbitrator a press release
concerning the proposed legislation that became the ATRA
in which the Secretary of Transportation stated that the
provision for missed-meal premium pay had "the effect of
reducing the controller's work week to 37 1/2 hours, while
getting paid for 40." October 22, 1981, Statement of U.S.
Secretary of Transportation Drew Lewis at 2. The Union
took the position that Article 34, Section 1, when read in
the context of an uninterrupted meal period with
missed-meal premium pay under the ATRA and the Agency's
practice of providing a paid meal period when scheduling
full-performance level controllers for training and
developmental controllers for laboratory training, meant
that controllers in the bargaining unit "receive, by
contract, a paid lunch." Award at 7 (emphasis in
original). As a remedy, the Union requested overtime pay
for all unit employees who had been required to work 8 1/2
hours since the effective date of the collective
bargaining agreement and an award of attorney fees.

The Agency conceded to the Arbitrator that, when in
operational status, controllers are treated differently
than other Federal employees because they receive premium
pay for missed meals. However, the Agency argued that the
missed-meal premium set forth in the ATRA is inapplicable
when controllers are engaged in administrative duties
because there is no claim that any employee in a training
program was required to work during or through his or her
meal period. The Agency maintained that the decision of
the Comptroller General in 62 Comp. Gen. 58 (1982)
demonstrates that controllers are subject to the same
rules as other Federal employees regarding paid and unpaid
meal periods.

The Arbitrator found that management "mostly relie[d]
upon the legal complexity of the paid versus unpaid lunch
issue" to explain why it did not believe Article 34,
Section 1, "had anything to do with inclusion or lack of
inclusion of paid meal breaks." Id. at 9. The Arbitrator
acknowledged that "[a] paid, duty-free, meal period has
been a very touchy issue with a long history at the FAA."
Id. She noted that the FLSA "prohibits counting bonafide
meal periods as hours worked." Id. However, she found
that "[t]he ATRA legislation . . ., in a back-handed way,
by implication, . . . provides for paid meal periods for
certain air traffic controllers." Id. In the
Arbitrator's view, "[t]he legislation clearly contemplates
that air traffic controllers receive an unworked,
uninterrupted lunch break within their regularly scheduled
8-hour period of service and be paid for all 8 hours
inclusive of the meal-break." Id. Therefore, the
Arbitrator held that the ATRA "legislation clearly creates
an exception to the more general coverage of the FLSA in
the case of certain air traffic controllers." Id. at 10.

Reviewing the language of 5 U.S.C. § 5546a(e)(1), the
Arbitrator concluded that the ATRA exception to the FLSA
restrictions on meal periods constituting hours of work is
"limited by implication to situations where controllers
are at least conceivably on-call to operate a position, if
not in actual operational duty status." Id. at 11.
Applying the ATRA in this manner, the Arbitrator ruled
that "individuals on special assignment away from the
facility, individuals medically disqualified from
operational duty, and Developmentals not yet qualified for
operational duty" are not entitled to a scheduled workday
of 8 hours, inclusive of a paid, 30-minute, uninterrupted
meal period. Id. at 11-12. The Arbitrator held that
those individuals are subject to the FLSA restrictions
that bona fide meal periods are not compensable. She
further ruled, however, that, under the ATRA,
developmental controllers, "once they are sufficiently
trained to qualify for operational duty (and on-call
status)," are entitled to a regularly scheduled 8-hour
period of duty, inclusive of a paid, 30-minute,
uninterrupted meal period. Id. at 12. Because the
evidence was not clear as to what extent, if any, such
individuals may have been scheduled for an unpaid lunch in
connection with training, the Arbitrator determined that
no remedy other than a change in practice was appropriate.

Accordingly, the Arbitrator awarded as follows:

The Agency does not violate the Contract by
scheduling training for 8.5 hours to include an
unpaid 30 minute lunch break in any situation
where participants are not at least potentially
in an on-call status with respect to operational
duties.

To the extent on-site training may have been
scheduled for operationally qualified controllers
to include an unpaid break, the arbitrator finds
that this practice shall be changed to conduct
such training within a regularly scheduled 8 hour
period of service.

Id.

III. Agency's Exceptions

A. Contentions

The Agency filed exceptions to the portion of the
award directing that the Agency conduct the training of
operationally qualified controllers within a regularly
scheduled 8-hour period of duty, inclusive of a paid,
30-minute, uninterrupted meal period. The Agency contends
that this portion of the award violates 5 C.F.R. part 551,
which implements the FLSA for Federal employees, and
violates management's right to assign work under section
7106(a)(2)(B) of the Statute.

The Agency argues that the award violates 5 C.F.R.
part 551 by directing that the Agency allow paid meal
periods for employees under circumstances where the meal
periods are not compensable. The Agency notes that 5 C.F.R. § 551.411(c) provides that bona fide meal periods
are not considered hours of work. The Agency cites to
decisions of the Comptroller General setting forth
criteria to determine whether a meal period is
compensable. The Agency disputes the Arbitrator's
conclusion that because operationally qualified
controllers are potentially in an on-call status during a
scheduled, uninterrupted meal period, the meal period is
compensable. The Agency asserts that, because it is able
to provide a scheduled, uninterrupted meal period for
controllers who are on administrative duties, there is no
legal authority for compensating the meal period as hours
of work, and the award is deficient.

The Agency also argues that the Arbitrator's order to
conduct training only within a regularly scheduled 8-hour
period of duty restricts the Agency from scheduling 8 1/2
hours of training when necessary. Therefore, the Agency
asserts that the award directly interferes with
management's right under section 7106(a)(2)(B) to assign
and schedule work in the form of training and to determine
the personnel who will perform this training.

B. Union's Opposition

The Union contends that the award does not violate 5
C.F.R. part 551 or management's right to assign work under
section 7106(a)(2)(B) of the Statute.

The Union argues that the record supports the
Arbitrator's finding that the meal period is compensable
because the employees who are assigned training are
subject to call-back. The Union cites testimony as to
controllers having been called out of training for
emergency purposes and testimony of the Chicago Center
manager who conceded that all controllers are at least
"generically" on call. Union's Opposition at 4. The
Union also points out that the Agency does not explain why
it provides a paid meal when scheduling full-performance
level controllers for training and developmental
controllers for laboratory training if all controllers are
guaranteed an uninterrupted, 30-minute, meal period on
training days. The Union further argues that the
decisions of the Comptroller General are of no support
because of the application of the ATRA. The Union
maintains that the missed-meal premium provision "must be
read, by way of Legislative history, with the statements
made at the time the legislation was submitted." Id. at
6. The Union quotes the statement of Secretary of
Transportation Lewis stating that the ATRA has the effect
of reducing a controller's workweek to 37 1/2 hours while
getting paid for 40 hours.

The Union also argues that the award does not
restrain the Agency in the scheduling of training. The
Union maintains that the award simply requires the Agency
to schedule the workday for 8 consecutive hours, rather
than 8 1/2 hours, in order to comply with its commitment
in the parties' collective bargaining agreement.

IV. Union's Exceptions

The Union contends that the Arbitrator exceeded her
authority by deciding issues not submitted. The Union
further argues that the limitation of the award to
prospective relief is contrary to law and public policy
and fails to draw its essence from the collective
bargaining agreement. The Union also asserts that the
award is deficient because the Arbitrator failed to rule
on the Union's request for attorney fees.

The Union argues that the Arbitrator exceeded her
authority by addressing the schedules of controllers on
special assignment away from the facility, controllers
medically disqualified from operational duty, and
developmental controllers not yet qualified for
operational duty. The Union asserts that these issues
were not submitted to the Arbitrator. The Union maintains
that the record reflects that the grievance issues were
clearly confined to controllers "in the phase 8 and phase
II Alpha training." Union's Exceptions at 13 (citation
omitted).

The Union argues that the award is contrary to law
and public policy and fails to draw its essence from the
agreement because there is no basis for the Arbitrator to
have excused the Agency from the liability of compensating
the controllers that she found were entitled to the
benefit of a paid meal period under law and the collective
bargaining agreement. The Union maintains that there was
never a dispute over the period of the alleged breach of
the agreement by the Agency. The Union asserts that the
award fails to draw its essence from the agreement because
the award cannot limit the relief to prospective relief
when a breach of the agreement is found. The Union also
asserts that because the Arbitrator found a violation of
the ATRA, the grievants were entitled to an award of
backpay as a matter of law under the Back Pay Act, 5 U.S.C. § 5596. The Union further asserts that the award
would violate public policy unless the award is modified
to provide a proper remedy to the grievants. The Union
claims that by failing to vindicate the grievants' losses,
the award violates public policy because it frustrates the
collective bargaining process.

The Union argues that the award is also deficient
because the Union requested an award of attorney fees, but
the Arbitrator did not rule on the request. The Union
maintains that under the decisions of the Authority, an
arbitrator may not decide a fee request by implication by
failing to address it.

V. Analysis and Conclusions

A. The Arbitrator Did Not Exceed Her Authority

Contrary to the Union's claim, the Arbitrator did not
exceed her authority by ruling on issues that were not
submitted. We find that the Arbitrator's addressing of
the schedules of controllers on special assignment,
controllers medically disqualified from operational duty,
and developmental controllers not yet qualified for
operational duty is directly responsive to the issue as
the Arbitrator framed it in the absence of a stipulation
by the parties. Arbitrators are accorded substantial
deference in the formulation of issues. For example, U.S.
Department of Defense, Delaware National Guard,
Wilmington, Delaware and Association of Civilian
Technicians, 39 FLRA 1225, 1233 (1991). In our view, the
schedules of these controllers were encompassed by the
Arbitrator's statement of the issue as it pertained to the
assignment of administrative duties, and no basis is
provided for finding that the Arbitrator exceeded her
authority. Seeid. at 1232-33 (the award was directly
responsive to the issues as the arbitrator framed them,
and, consequently, no basis was provided for finding that
the arbitrator exceeded his authority by ruling on matters
not before him). We note that the schedules of medically
disqualified controllers and controllers on special
assignment were specifically addressed before the
Arbitrator. Transcript at 107-08; Agency's Post-hearing
Brief at 2. Moreover, we find that the schedules of these
controllers were encompassed by the statement of the
grievance itself. The grievance, as did the Arbitrator's
statement of the issue, related to controllers assigned to
"administrative duties." In our view, the use of the
words "such as training" in the grievance was for the
purpose of providing an example and not for the purpose of
restricting the scope of the grievance.

Accordingly, we deny this exception.

B. The Award Is Contrary to Law

The Arbitrator ruled that, under 5 U.S.C. § 5546a(e)(1), operationally qualified controllers are
entitled to a regularly scheduled 8-hour period of duty,
inclusive of a paid, 30-minute, uninterrupted meal period,
when assigned to training. She found that "[t]he ATRA
legislation . . ., in a back-handed way, by implication, .
. . provides for paid meal periods for certain air traffic
controllers." Award at 9. She held that "[t]he special
(ATRA) legislation clearly creates an exception to the
more general coverage of the FLSA in the case of certain
air traffic controllers." Id. at 10. We disagree. We
find that section 5546a(e)(1) does not provide for paid
meal periods and does not create an exception to the legal
prohibitions on compensating meal periods. We further
find that the uninterrupted meal period provided the
controllers is not compensable and that the award is
deficient to the extent that it orders the meal period to
be compensated.

We disagree with the Arbitrator that section
5546a(e)(1) provides for paid meal periods. We have
examined the provisions of section 5546a(e)(1) and DOT
Order 3550.13 implementing the statutory provisions. In
our view, the statutory language and the implementing
regulation make it clear that section 5546a(e)(1) is a
provision for premium pay and not a provision for paid,
uninterrupted meal periods. This is made clear by the
fact that the premium pay provisions do not apply when
management offers employees a meal period between the 4th
through 6th hours of their shifts, as was evidently done
in this case. DOT Order 3550.13, Appendix 1, Section
4(f). In view of the clear statutory language and
implementing regulatory provisions, we will not look to
the preenactment statement of Secretary Lewis in
interpreting and applying section 5546a(e)(1). In our
view, to do so would improperly supplant the statutory
provisions of section 5546a(e)(1). Moreover, we are
unwilling to interpret section 5546a(e)(1) as effectively
reducing the controllers' workweek to 37 1/2 hours, with
payment for 40 hours, without more evidence of such intent
by Congress. Such an interpretation would directly
conflict with the longstanding requirement of 5 U.S.C. § 6101 that the basic workweek must consist of 40 hours of
work. See, for example, American Federation of Government
Employees, AFL-CIO, Local 3231 and Department of Health
and Human Services, Social Security Administration, 25
FLRA 600, 601 (1987) (AFGE Local 3231).

Accordingly, as section 5546a(e)(1) is inapplicable
to the determination of whether controllers could be
compensated for an uninterrupted meal period, the
Arbitrator was required to have made the determination
under title 5 of the U.S. Code and the FLSA. As
recognized by the Arbitrator, the FLSA prohibits bona fide
meal periods from being compensated as hours of work.
Under Federal Personnel Manual Letter 551-1, when an
employee's meal periods are uninterrupted except for rare
and infrequent emergency calls, the meal periods are not
compensable. In addition, in considering the specific
issue of whether time set aside for a meal period is
compensable as hours of work under title 5 or the FLSA,
the Authority in AFGE Local 3231 adopted the position of
the Court of Claims, which had consistently held that meal
periods are not compensable unless the employee performs
substantial job-related duties. 25 FLRA at 602 (citing
Baker v. United States, 218 Ct. Cl. 602 (1978) (Baker)).

In Baker, the court recognized the general principle
that employees cannot be compensated under title 5 or the
FLSA unless the employee has performed substantial,
job-related duties. 218 Ct. Cl. at 623. The court held
that substantial, job-related duties are not performed
during a designated duty-free meal period when the meal
period is interrupted only rarely by the necessity of
performing work. Because the court in Baker found that
the meal period was interrupted only rarely, the court
ruled that the meal period was not compensable. The fact
that the employees were "on call" during their meal period
did not persuade the court otherwise. Id. at 622. AccordBennett v. United States, 194 Ct. Cl. 889 (1971).

Consequently, in this case, we find that the award is
deficient by ordering that all operationally qualified
controllers assigned to training be compensated for a
30-minute, uninterrupted meal period without regard to
whether substantial interruptions occurred.(4) In so finding, we conclude that the Union has failed to
establish that any actual interruptions were more than
rare. In addition, because the Agency's scheduling of
full-performance level controllers for training and
developmental controllers for laboratory training was not
encompassed by the Arbitrator's award, we find, contrary
to the Union's assertion, that the Agency's practice in
that regard is not relevant to whether the paid meal
period ordered by the Arbitrator is deficient.
Accordingly, we will modify the award by striking the
second paragraph.(5)

VI. Decision

The award is modified to strike the second paragraph,
which provides as follows:

To the extent on-site training may have been
scheduled for operationally qualified controllers
to include an unpaid break, the arbitrator finds
that this practice shall be changed to conduct
such training within a regularly scheduled 8 hour
period of service.

FOOTNOTES: (If blank, the decision does not
have footnotes.)

1. On August 10, 1990,
the Authority ordered the Union to
show cause why its exceptions should not be dismissed as
untimely filed. The order noted that the award was dated June
27, 1990, and stated that if the award had been served on the
Union on that date, the Union's exceptions filed on August 2
would be untimely. In its response to the order, the Union has established that,
although it had received a copy from the Agency, the
Arbitrator had not served a copy of the award on the Union.
Accordingly, there is no basis on which to find the exceptions
untimely, and they will not be dismissed.

2. The Agency also
requested a stay of the Arbitrator's
award when it filed its exceptions to the award. Effective
December 31, 1986, the Authority's Regulations were revised to
revoke those portions pertaining to the filing of requests for
stays of arbitration awards. 51 Fed. Reg. 45754 (1986).
Accordingly, no action was taken on the stay request.

3. Public Law
Nos. 97-276, 97-377, and 98-78, in
appropriating funds for the Department of Transportation
(DOT), enacted and amended 5 U.S.C. § 5546a to provide
certain premium pay to air traffic controllers as a part of
an air traffic control revitalization. Both the parties
and the Arbitrator refer to these provisions as the Air
Traffic Revitalization Act or ATRA.

4. In
reaching this conclusion, we have considered
both title 5 of the U.S. Code and the FLSA, consistent with
the implementation of section 210 of the Federal Employees
Pay Comparability Act of 1990 by the Office of Personnel
Management. 56 Fed. Reg. 20339 (1991).

5. In view of
this decision, we need not address the
Agency's other exception to the award. Because we have
found that the disputed portion of the Arbitrator's order
is contrary to law, we deny the Union's exceptions
contending that the award is deficient by limiting the
remedy to prospective relief. Because the award, as
modified by this decision, finds no unjustified or
unwarranted personnel action and awards no backpay, we find
that the Union's exception pertaining to its request for
attorney fees is now moot, and the exception is dismissed.